Agog about ACOG

Posted Mon, July 12th, 2010 5:02 pm by Tom Goldstein

The most recent round of criticism of Elena Kagan involves her claimed role in the medical debate over the procedure known as Intact D&X, which pro-life advocates refer to as partial-birth abortion. As almost everyone knows, so I won't recount in detail here, it is a particularly gruesome, late-term procedure that Congress has banned, including because of its visceral parallel to infanticide. The Supreme Court upheld the federal statute in Gonzales v. Carhart, effectively reversing a prior decision (Stenberg v. Carhart, from the time Sandra Day O'Connor was on the Court) invalidating a very similar state law.

As I said, the issue involving Kagan is essentially a medical one. She of course is not a doctor, and that is basically the point. Critics contend that, while Kagan served as an aide to President Clinton, she invented or at least manipulated the conclusions of a medical group "“ the American College of Obstetricians and Gynecologists (ACOG) "“ about the procedure.

Here is how the issue arises. President Clinton supported a ban on Intact D&X, so long as it included an exception for procedures necessary to protect the life or health of the mother. Elena Kagan, while a domestic policy staffer, worked extensively on the issue.

ACOG's position mattered a lot in the public and legislative debates. It is an extremely well-respected group in this field.

On the core question of the health exception, ACOG's views were a problem for the Administration. ACOG concluded "“ and stated publicly "“ that other late-term procedures were in all instances available as a substitute for Intact D&X. According to ACOG, the Clinton Administration's position that a partial-birth abortion ban must have an exception for cases in which the procedure is necessary to protect the mother's life or health was empty: in ACOG's view, there are no such cases.

But there remained another closely related question that was very relevant to the legislative debate over partial-birth abortion: are there nonetheless instances in which the procedure is medically indicated "“ i.e., it is the best late-term abortion option for the mother "“ generally because it presented less of a risk to the mother's health?

According to ACOG's formal statements, the answer is "yes." And by concluding that there were circumstances in which the procedure was medically in the mother's best interests, ACOG's position presented a scientific justification for not adopting a categorical prohibition on the procedure. Because ACOG is a deeply respected organization in this field, Congress and the public took its position seriously in reaching conclusions about the federal ban and similar state laws. So did the courts in considering constitutional challenges to those statutes. Moreover, the question whether the ban was categorical was critical "“ particularly to opponents of Intact D&X, who believed both that a prohibition was a moral imperative and also that an exception would be expanded by complicit doctors who would say whatever was necessary to trigger whatever exception was available.

The strong claim now made against Kagan "“ typified by this initial post by Shannen Coffin (which he seems to have walked back in this subsequent post) "“ is that she essentially invented medical conclusions that ACOG did not itself believe. The assertion is that ACOG's medical judgment was in fact "no" "“ that Intact D&X was not ever medically indicated "“ and that she got it to change its position.

The allegation is consequential. If Kagan twisted ACOG's conclusions in the way alleged by her critics, she would have played a significant (and hidden) role in shaping legislative (and less directly, judicial) decisions about a powerfully important social and moral issue. Equally important now, Kagan testified at her confirmation hearings that she merely encouraged ACOG to state clearly what it had already independently concluded. If the strong claim against her is correct, then she did not testify truthfully.

The more modest claim "“ exemplified by this post by William Saletan "“ is that Kagan shifted ACOG's emphasis in its public statements, but did so in a way that is troubling, if more so for what it says about ACOG.

In evaluating both claims, I have tried to review all of the available materials. I read every document related to abortion in the Kagan files that have been released. I also reviewed all of ACOG's own statements on the issue, as well as the rulings and the available parts of the record in the Gonzales v. Carhart challenge to the federal partial-birth abortion statute (in which ACOG played a significant role). Finally, I contacted the person who was the head of ACOG at the time "“ Dr. Frederic Frigoletto "“ who confirmed my understanding of the relevant events.

Based on that review, I think the strong claim against Kagan is clearly wrong. There is considerable evidence (I think overwhelming evidence) that ACOG's stated position "“ that there are times when Intact D&X is medically indicated "“ reflected its own expert medical conclusion, not the views of Kagan or the Clinton Administration.

For similar reasons, I think the more modest claim that Kagan shifted ACOG's emphasis is wrong, or at least significantly overstated. ACOG not only had concluded that Intact D & X was in certain limited circumstances medically indicated, but had affirmatively made that point "“ albeit not very clearly "“ in the draft statement on which Kagan first commented. I do think that it's fair to say that Kagan's proposed language later made a material difference in the debate over partial-birth abortion, but the relevant point is that the language reflected a position that ACOG already believed and was already articulating. It therefore is hard to criticize either ACOG or Kagan.

Here is the chronology as I have been able to reconstruct it, quoting extensively from the available materials so that readers can make their own judgments.

At the close of President Clinton's first term, partial-birth abortion remained an important social and political question. The President's position was that Intact D & X should be banned, so long as there was an exception for the life or health of the mother. Most of the relevant documents involve a period between the President's two vetoes of partial-birth abortion bans that did not include the exception for the life or health of the mother that was required to secure his support.

In June 1996, White House staff members met with representatives of ACOG. On June 22, Kagan wrote a memo summarizing the results of that meeting. It stated:

First, there are an exceedingly small number of partial birth abortions that could meet the standard that the President has articulated [i.e., necessity]. In the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious consequences to a woman's health; another option "“ whether another abortion procedure or, in the post-viability context, birth through a caesarean section, induced labor, or carrying the pregnancy to term "“ is equally safe. I will spare you the medical details here. Suffice it to say that we went through every circumstance imaginable "“ post- and pre-viability, assuming malformed fetuses, assuming other medical conditions, etc., etc. "“ and there just aren't many where use of the partial-birth abortion is the least risky, let alone the "necessary," approach. No one should worry about being able to drive a truck through the President's proposed exception; the real issue is whether anything at all can get through it.

Second, and relatedly, of the five women who came to the White House, only two can truly say (though they all apparently believe) that the partial birth procedure was the least risky of their alternatives. Again, I'll spare you the details, but the other three "“ all of whom were carrying malformed fetuses in the third trimester "“ could have given birth, either through induction or through carrying the fetus to term, without serious risk to their health. (The partial birth procedure in these cases was the least risky method of abortion, but this is not a strong argument, given that these fetuses were post-viability "“ when most states, and the President himself, would prohibit all abortions except for life or health reasons.)

Those present at the meeting all agreed, on the basis of the thoroughness and care of the ACOG presentation, that these two points are probably just true, rather than a matter of medical opinion. (Betsy Myers and Jeremy Ben-Ami, neither of whom attended the meeting, have expressed the view that some other doctor might say something different.)

At the same time, none of us think that this information should cause us to change the standard the President has articulated or the rhetoric he has used. The letters and written materials we have used are really pretty accurate "“ even though the proposed amendment the President has offered would allow fewer abortions than we knew. So too for the President's oral statements. Melanne believes that at an appropriate time, prior to the debates or when the veto becomes an issue again, we should make sure the President knows that some of the women's stories are tighter than others; otherwise, she sees no need for any further briefing. I agree, but I also would keep a close eye out for "“ so we can clamp down quickly on "“ any extension of our rhetoric, whether by the President or others.

According to testimony the district court credited in Gonzales v. Carhart, on October 5-6, 1996, an ACOG task force on partial-birth abortion met to discuss the issue and develop a draft policy. (The district court's opinion is available here in the Petition Appendix from the case.) That draft would later be submitted ACOG's policymaking body, its Executive Board. As recounted by the court's opinion, the task force "crafted language they believed represented expert opinion on the issues of concern to the fellowship [i.e., ACOG]. A staff member typed the draft language and it was then edited by the committee." Carhart Pet. App. 427a. "Before and during the task force meeting, neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony . . .." Id. 433a.

The task force "could identify no circumstance where the intact D & X was the only available option to save the life of the woman or preserve or her health." Id. 436a.

But critically for the current discussion of Kagan's role, "Task force members were, however, able to think of individual patient circumstances where the intact D & X was a better choice for the individual patient," including instances in which "it is much safer for the woman to have an intact D & X procedure." Id. 435a. See also id. 434a ("The task force considered the cases discussed by its members as examples of when an intact D & X may be the safest procedure, but these were not published case reports."). The witness identified by ACOG as the expert on the task force's proceedings testified that there were "multiple circumstances that an expert panel could identify at the time of the task force where [intact D&X] was clearly the best choice, including . . . where the other options led to a higher likelihood of death or recurrence of disease." Carhart J.A. 502 (dep. test. of Dr. Joanna Cain). As ACOG later put it in its amicus brief in the Carhart litigation: "the task force concluded that intact D&E [another term for the same procedure] could be the safest or most appropriate procedure for a given patient . . . . The task force presented this conclusion to ACOG's Executive Board in a draft Statement of Policy." Carhart ACOG Br. 9.

On December 5, 1996, ACOG's Governmental Affairs office provided the White House with a Draft Statement "“ so far as I can tell, the task force's draft "“ which stated in relevant part:

[A] select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. Notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor, in consultation with the patient, based upon the woman's particular circumstances. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and potentially dangerous.

As the Carhart district court summarized this paragraph of the task force draft:

The proposed ACOG Statement on Intact Dilation and Extraction submitted by the task force (Ex. 655) concluded that it could identify no circumstances where the intact D & X was the only available option to save the life of the woman or preserve her health. The task force had discussed numerous circumstances where it may be the best procedure for the woman's life and health, and therefore stated that the decision should be left to the woman and her doctor. Exhibit 655 did not, however, specifically state that the intact D & X was sometimes the safest and best available procedure.

Id. 436a-37a.

On Friday December 13, President Clinton reiterated that he favored a partial-birth abortion ban, so long as it included an exception for the health of the mother. He indicated that the exception would be applicable to "a few hundred women every year," because that procedure (as opposed to alternative methods of late-term abortion) would be necessary to "preserve the [woman's] ability to have further children."

The next day, Kagan circulated a memo to provide "news on the partial-birth abortion front (especially apropos in light of the President's remarks on Friday)." First of these was that the White House

just discovered that the American College of Obstetricians and Gynecologists (ACOG) is thinking about issuing a statement (attached) that includes the following sentence: "[A] select panel convened by ACOG could identify no circumstances under which [the partial-birth] procedure . . . would be the only option to save the life or preserve the health of the woman." This, of course, would be a disaster "“ not the less so (in fact, the more so) because ACOG continues to oppose the legislation. It is unclear whether ACOG will issue the statement; even if it does not, there is obviously a chance that the draft will become public.

Kagan's copy of the ACOG task force draft reflects that she began to mark up the critical paragraph. We don't know when she did so, but it seems likely that it was after her December 14 memo, which doesn't mention efforts to address ACOG's position. Kagan's files also include undated (but seemingly contemporaneous) notes in her handwriting of additional proposed language for the statement. We don't know for sure that the language was her own (as opposed to notes of a meeting she attended or a phone call she had, for example), but without other information I assume she was the author.

Although other options are avail[able] to save the life or preserve the health of the mother. Whether or not intact D & X is the best or most appropriate procedure in a partic[ular] case is a decision that must be made by the d[octo]r.

On a second page, the notes provide the following "suggested options":

An intact D &X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and a doctor should be allowed to make this determination.

A doctor, however, must be able / should be allowed to determine whether an intact D & X is the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.

This page includes the name Kathy Bryant, an ACOG government relations employee, with her phone and fax numbers. In her hearings, Kagan said (at minute 45:57 in this video feed) she "recall[ed] generally . . . talking to ACOG about that statement and about whether that statement was consistent with the views that we knew it had because they had stated them." So it seems most likely (and I infer) that Kagan called Bryant and provided her with the proposed language, though (again) it could be that the notes reflect suggestions of Bryant herself during a call.

According to the district court in Carhart, the ACOG Executive Board "edited the task force's proposed policy by adding, "[a]n intact D & X, however, may be the best or most appropriate procedure to save the life or preserve the health of a woman.' The additional phrasing was consistent with the task force's discussion." Id. 437a. The Executive Board adopted the policy "pursuant to its general policy-drafting and adoption processes." Id. As ACOG described the events, "The Executive Board approved the draft Statement of Policy, but determined that it should explicitly state the task force's conclusion that an intact D&E may be the best or most appropriate procedure under certain circumstances." Carhart ACOG Br. 9-10.

On January 12, 1997, ACOG published its Final Statement on the procedure, which provided in relevant part (bold in original, but italics added to show additional language that tracks verbatim part of the first "option" in Kagan's notes):

A select panel convened by ACOG could identify no circumstance under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. An intact D & X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.

The copy of the document in the files of Bruce Reed "“ Kagan's boss "“ includes this note from Kagan (underlining in original): "Here's the final ACOG statement on partial-birth. It turned out aton better than expected. I'll let you know what happened."

In April 1997, Kagan wrote a memo to the President [see page 9 of this document] to address the question "whether the so-called partial-birth procedure is ever necessary to save the life of a woman or avert serious harm to her health." She noted that the question was the subject of "[c]onsiderable medical uncertainty," and continued:

Perhaps the most reliable opinion is from the American College of Obstetricians and Gynecologists (ACOG), which issued a statement in January addressing the procedure. (ACOG, like most other medical groups, calls the procedure an intact dilation and extraction or intact D&X.) According to the statement, "A select panel convened by ACOG could identify no circumstances under which this procedure would be the only option to save the life or preserve the health of the woman." (Emphasis in original.) The statement then went on: "An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision." In sum, doctors have other options, but those other options may be more risky or otherwise more undesirable from a medical standpoint.

ACOG subsequently reaffirmed its position, including the italicized language above. It was included in ACOG's September 2000 abortion policy, and once again in the July 2004 policy.

Here is what I conclude from the materials.

First, the strong allegation against Kagan is wrong. The ACOG task force concluded that there were particular cases in which Intact D & X was the best available procedure for the mother's health. It reached that conclusion in October 1996, before Kagan's involvement in December 1996. The district court in Carhart found as a matter of fact that the task force reached that conclusion, relying on the sworn testimony of the task force's representative, as well as the task force's report. ACOG confirmed the chronology in its briefing in Carhart. Kagan's sworn testimony at her confirmation hearing is to the same effect.

There is no contrary evidence. And (as Kagan pointed out in her hearing testimony) the strong claim is on its face almost implausible, so it would need strong evidence to support it. ACOG is an organization of specialists, which it turn appointed a task force of expert sub-specialists to address a pressing medical question. It not only included the language in question in its formal partial-birth abortion statement, but then twice reaffirmed it in two formal abortion policies and also in legal briefs (including in the Supreme Court). The idea that a White House staffer invented an important medical conclusion that this prestigious organization has repeatedly embraced just doesn't make sense.

Second, more broadly, Kagan was not attempting to distort or change ACOG's views. As I said, the language in question reflected the conclusions of the task force. If anything, I was struck by the way in which Kagan and the Administration accepted ACOG's position. Kagan's first memo on the issue "“ from June 1996 "“ fully accepts ACOG's views. It does not suggest that the Administration make any effort to change, construe, evade, or downplay them. That is particularly striking because ACOG's core position "“ that Intact D & X is never "necessary" in the sense of the only option "“ significantly undercut the very exception that the Administration was seeking. The contacts between the Administration and ACOG seem to have been perfectly ordinary and appropriate.

For what it is worth, Kagan herself clearly believed that she was accurately reflecting ACOG's views. In her April 1997 memo to the President, Kagan quoted the critical language as accurately stating ACOG's views and as setting forth the "most reliable opinion" in the medical community.

I specifically don't think ACOG's position "“ or Kagan's draft language "“ was misleading with respect to the frequency with which Intact D & X was the medically best option. The answer seems to be "very rarely," a point that ACOG's final Statement does not make. But the relevant point for the ongoing legislative debate was that such cases did exist, a fact that supported the conclusion that the procedure should not be absolutely banned but instead should be subject to an exception.

Of particular note to me, the Administration seems to have been genuinely concerned that it take care not to overstate or misrepresent the number of cases that would be encompassed by such an exception. Kagan's June 1996 memo said that the Administration should be vigilant against any "extension of our rhetoric" on the issue. And more broadly, all the Administration memos I read "“ which were private, internal communications "“ were serious and thoughtful, not filled with pro-choice rhetoric or venom against the opponents of Intact D & X.

I also disagree with the contention that the White House's involvement in the process politicized a medical or scientific judgment. It is certainly the case that the role of the ACOG task force was to render an expert medical opinion on whether and when Intact D & X was necessary or appropriate. But it was plainly doing so as part of the ongoing political debate over the issue. The task force was not, for example, issuing clinical guidelines. ACOG's activities necessarily intersected with Washington politics and there is nothing surprising or inappropriate about it having discussions with the White House and Congress, so long as it did not alter its medical judgment as a consequence.

Third, Kagan did play a brief but seemingly significant role in the precise words that ACOG ultimately used to articulate its position. The task force's initial draft addressed the circumstances in which Intact D & X was the best medical option, but it did not do so particularly clearly: "The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women." In addition, from the very first draft ACOG made clear its opposition to legislatures overriding the medical judgments of personal physicians in the circumstances of individual cases.

Kagan deleted nothing in the draft statement and simply proposed additional language that got much more directly to the point: "An intact D & X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman." ACOG accepted that language.

It seems clear that Kagan herself believed that she had been instrumental in the change. She wrote to Reed: "Here's the final ACOG statement on partial-birth. It turned out aton better than expected. I'll let you know what happened."

The district court's conclusion in Carhart that it was the ACOG Executive Board that inserted the language into ACOG's policy is thus true but incomplete. The language appears to have originated with Kagan. That said, given that the substance of what was said seems clearly to have originated with ACOG rather than Kagan, the fact that she came up with the precise words doesn't seem consequential.

Fourth, Kagan's role was political, not medical. There was nothing inappropriate about it "“ her job was to advance the Administration's domestic policy "“ but attempts to downplay its significance are incorrect.

Take Kagan's statement that the task force's draft statement was a "disaster." Kagan testified at her confirmation hearing that she meant that it would be disastrous for ACOG to state its views on one issue (whether Intact D & X was necessary) but not the other (whether it was nonetheless medically the best procedure in individual cases). That seems accurate, but also seems to miss the point.

The phrase "disaster" was hyperbolic but on my reading made a political point: the President had recently vetoed one partial-birth abortion ban and was facing the prospect of having to veto such a measure again. The basis for his position was that the bill must have an exception where the procedure was necessary for the life or health of the mother. Yet a leading organization was about to take the formal position that such an exception was unnecessary because there were no such cases. That statement "“ standing alone "“ would materially undercut the President's position on the issue.

So Kagan seems to have recognized that ACOG's views were not all bad for the Administration and that the best they could hope for was that ACOG would better articulate both parts of the task force's conclusions. (Note again that Kagan from the very earliest point in time did not attempt to change or undercut the views that ACOG articulated.) If ACOG acknowledged that there were nonetheless cases in which Intact D & X represented the best medical option, that would argue against a complete ban on the procedure. She proposed language that would make that point more clearly, and ACOG agreed. There doesn't seem anything remarkable or remotely inappropriate about that course of events. And of course, Kagan herself never misrepresented her role in what occurred.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.